Opinion
No. 2489 C.D. 2011
11-13-2012
Theresa Leonarczyk, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Theresa Leonarczyk (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant, formerly employed by Ateeco, Inc., d/b/a Mrs. T's (Employer), contends the Board erred in determining the transgression resulting in Claimant's termination rose to the level of willful misconduct where such actions did not warrant immediate termination under Employer's discipline policy. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law states an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to her work. Willful misconduct is defined by the courts as: 1) wanton and willful disregard of an employer's interests; 2) deliberate violation of rules; 3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or 4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002).
I. Background
The Board found the following facts. Claimant last worked for Employer in June 2011 as a full-time carton seal operator. Bd. Op., 11/3/11, Finding of Fact (F.F.) No. 1. Employer's policy provides for immediate termination for: abuse of a coworker; marring, defacing, or other deliberate destruction of company property or product; fighting; causing a hostile work environment; or threatening harm to another person. F.F. No. 2. Additionally, Employer's policy calls for discipline for: wasting company product; gross carelessness or recklessness; use of abusive or profane language; and, rude or discourteous behavior on company premises. F.F. No. 3.
Claimant received a handbook that contained these policies. In 1999, Employer issued Claimant a three-day suspension for throwing a pierogi across a table. F.F. Nos. 4, 5.
On May 1, 2011, Employer's first shift production supervisor counseled Claimant on how to handle boxes that are overweight or underweight. Claimant was instructed to walk the suspect box to the opening between the work areas and notify the scale operator of the problem. F.F. No. 6. Claimant also received counseling on how to get along with coworkers. Id.
Nonetheless, approximately two or three weeks later, Claimant began receiving boxes on the conveyor belt that were overweight and underweight. F.F. No. 7. Claimant proceeded to the opening between the work areas and yelled "What's going on? Over weight, under weight, over weight." F.F. No. 8. Claimant then came back with two handfuls of pierogies and threw them. Id. Some landed on the conveyor belt, some landed on the table and some landed on the floor. Id. Employer terminated Claimant's employment for throwing the pierogies. F.F. No. 9.
In its decision denying benefits, the Board found the testimony of Employer's witnesses at the referee hearing to be credible. Bd. Op. at 2. The Board also resolved the conflicts in testimony in Employer's favor. Id.
Further, the Board determined Employer established the existence of various policies including those prohibiting the deliberate destruction of company product and rude or discourteous behavior on company property. Id. Also, the Board observed, Claimant was or should have been aware of Employer's policies. Id. at 2-3. Regarding the incident precipitating Claimant's termination, the Board stated (with emphasis added):
On May 18, 2011, the claimant, upset that the product was not properly packaged, threw handfuls of frozen pierogies into the adjoining work area, with pierogies going everywhere, including on the floor, wasting the employer's product. The Board finds the claimant's behavior in throwing the product to be in violation of the employer's policies and beneath the standards of behavior an employer has a right to expect of an employee. The claimant denied throwing the pierogies, testifying instead that she merely showed them to the scale operator then tossed them in a nearby cart. The Board discredits the claimant's testimony in favor of the employer's. The claimant has not proven good cause for her behavior. The employer has proven that the claimant was terminated from employment due to willful misconduct.Id. at 3. In accord with its determination of willful misconduct, the Board held Claimant ineligible for benefits under Section 402(e) of the Law. Claimant petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011 (Pa. Cmwlth. 2008). In addition, the Board is the final fact-finder in unemployment compensation cases and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Also, it is irrelevant whether the record includes evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. Further, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
II. Issue
Claimant contends the Board erred in determining the transgression resulting in her termination rose to the level of willful misconduct where Employer's own policies dictate that Claimant's actions did not warrant immediate termination.
III. Discussion
A. Argument
Claimant asserts the Board erred in finding the incident resulting in her termination constituted willful misconduct where Claimant's actions during the May 2011 incident did not warrant termination by Employer's own standards. Further, Claimant asserts her position is bolstered by the fact that Employer did not terminate Claimant's coworker who tossed the pierogies back into Claimant's area.
More particularly, Claimant contends the Board did not specify which of Employer's policies the "pierogi-tossing" breached. To that end, Claimant urges, her violation is properly characterized as "wasting company product," which falls under Employer's policy calling for progressive discipline. See F.F. No. 3. Although Employer suspended Claimant for three days in 1999, Claimant asserts she has since followed Employer's work rules and standards of behavior. Therefore, the 12-year-old incident should not be considered evidence of a persistent disregard of Employer's rules.
In addition, Claimant asserts her argument is strengthened by the fact that Employer did not terminate her coworker, Ms. Christine Acklo, who allegedly tossed the pierogies back at her. Ms. Acklo testified on cross-examination by Claimant that she received disciplinary action from Employer for throwing the pierogies back at Claimant:
In her brief, Claimant points out that she only refers to Employer's treatment of Ms. Acklo as an attempt to bolster her argument that her actions during the incident did not constitute willful misconduct based on Employer's policy. Claimant's Br. at 8 n.2. Claimant stresses she was not asserting the affirmative defense of disparate treatment. See Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970 (Pa. Cmwlth. 2009) (a claimant who engaged in willful misconduct may still receive unemployment benefits if she can establish disparate treatment, which requires a showing that: (1) the employer discharged claimant but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion). Even assuming Claimant's argument can be considered as advancing a disparate treatment claim, there is no evidence that Claimant and Ms. Acklo shared equal responsibility for the incident, engaged in similar conduct during the incident or were similarly situated regarding past rule violations. Consequently, a disparate treatment claim would fail. --------
C: You weren't written up for throwing the perogies [sic] come back on the other side?
EW3: I got my, I got my punishment.Referee's Hearing, Notes of Testimony (N.T.), 8/25/11, at 23.
C: For throwing perogies [sic] back on the other side?
EW3: Yeah I got my punishment.
C: Okay.
R: Had you ever previously been disciplined for throwing perogies [sic] or the like?
EW3: Would you say that again?
R: Had you ever previously been disciplined about throwing perogies [sic] or the like?
EW3: I never on the floor. I don't remember ....
B. Discussion
Although Employer may discharge Claimant for a number of reasons, it must do so in accordance with its own rules in order for Claimant to be found ineligible for benefits. PMA Reinsurance Co. v. Unemployment Comp. Bd. of Review, 558 A.2d 623 (Pa. Cmwlth. 1989). Here, Claimant contends Employer failed to follow its own rules because the incident in which she tossed the pierogies is best characterized as "wasting company product," which does not call for immediate termination under Employer's rules. See F.F. No. 3.
We disagree. First, the record shows Claimant has a history of disciplinary action involving problems with her coworkers. Employer suspended Claimant for three days in March 1999 for throwing a pierogi across a table. F.F. No. 5. Employer's human relations coordinator, Audrey Geist (HR Coordinator), testified regarding the three-day suspension in March 1999 for throwing a pierogi across a table. See N.T. at 8-10; Ex. E-5. Employer's personnel records contain a signed statement which indicates Claimant threw the pierogi into another employee's face in retaliation for getting her wet. Ex. E-5.
On May 1, 2011, a shift supervisor counseled Claimant on how to handle overweight or underweight boxes and how to get along with her coworkers. F.F. No. 6. Employer directed Claimant to walk the suspect box to the opening between the work areas and notify the scale operator of the problem. Id. Employer's first shift production supervisor, John Gantz (Shift Supervisor), testified that two or three weeks prior to the incident resulting in Claimant's termination, he counseled Claimant regarding her problems with her coworkers and how to handle overweight and underweight boxes. N.T. at 13-15.
Approximately two to three weeks later, when Claimant received overweight and underweight boxes on the assembly line, she not only yelled at her coworkers, but came back with two handfuls of frozen pierogies and threw them at the assembly line. F.F. Nos. 7, 8. Some landed on the conveyor belt, some landed on the table and some landed on the floor. F.F. No. 8.
A coworker, Ms. Theresa McCloskey, testified regarding the incident. Ms. McCloskey recalled Claimant came over from the B line to the A line and started yelling, "what's going on, under weight, over weight, under weight, over weight." N.T. at 16. Claimant then left and came back with her hands full of pierogies. Id. Claimant then threw the pierogies at the assembly line. Id. Ms. McCloskey further testified Claimant threw the pierogies at Ms. Acklo. Id. at 17.
In light of the Board's findings and the record supporting them, we reject Claimant's contention that her actions during the May 2011 incident did not warrant termination under Employer's policies. In Finding of Fact No 2, the Board found "[E]mployer's policy calls for immediate termination for abuse of a coworker; ... deliberate destruction of company property or product; ... fighting, causing a hostile work environment ...." F.F. No. 2 (emphasis added). During the incident leading to her termination, Claimant abused her coworkers, deliberately destroyed company product and incited a hostile work environment. Such conduct, by itself, rises to the level of willful misconduct. See, e.g., Matisko v. Unemployment Comp. Bd. of Review, 404 A.2d 451 (Pa. Cmwlth. 1979) (employee's instigation of confrontation with fellow employee by pushing items of food prepared by fellow employee off a table onto the floor constitutes willful misconduct).
Discerning no error in the Board's decision, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of November, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge